City of St. Joseph v. Hamilton

• Decision Date: 28 February 1869
• Citation: 43 Mo. 282
• Parties: CITY OF ST. JOSEPH, Respondent, v. MARY HAMILTON et al., Appellants.
• Court: Missouri Supreme Court

43 Mo. 282

CITY OF ST. JOSEPH, Respondent,

v.MARY HAMILTON et al., Appellants.

Supreme Court of Missouri.

February Term, 1869.

Appeal from Fifth District Court.

The facts appear in the opinion of the court.

Hall & Oliver, for appellants.

I. The city had no authority, under its charter, to summon a second jury to assess damages to the defendants. If the city felt aggrieved by the verdict of the first jury, its remedy was by appeal. (§§ 2, 3, 6, art. VI, p. 69, of charter of St. Joseph, approved February 22, 1851; State v. Keokuk, 9 Iowa, 438; 36 Mo. 551.) And although the law did not authorize the summoning of the second jury, yet the party aggrieved might appeal from the verdict of said second jury. (10 Mo. 773.)

II. Even if it be admitted that the city may refuse to open a street and abandon it to the owners of the land over which it is located after damages have been assessed by a jury, yet that will not avail the city in this case. She never has abandoned the street in controversy; she insists on opening it. At the very time the council disapproved of the verdict of the first jury, they declared their intention to open the street, and directed the mayor accordingly. We insist that the most that can be claimed by the city is, that after the verdict of the first jury she might have abandoned the street. But having elected not to abandon the street, we say she becomes liable to pay the damages the first jury assessed. (9 How. 94; Peirce Am. Railw. 218; 10 Cow. 157; 12 Cow. 364.)

III. The verdict of the second jury being unauthorized by law, the verdict of the first jury remained in full force, especially since the city council, with full knowledge of the verdict, determined that the street should be opened. And when the case went to the Circuit Court neither party was entitled to a trial de novo, for neither party had appealed from the verdict of the first jury. The Circuit Court, then, having no right to try the case anew, and the first verdict being in full force, the only thing left for the court was to give judgment for the amount of the first verdict. (City Charter, art. VI, §§ 2, 3, 4, p. 69; 1 Mo. 539; 8 Mo. 47; 12 Mo. 330; 3 Mo. 12; 9 Iowa, 438; 10 Pick. 235; 18 U. S. Dig. 128, § 33; Staats v. Hudson River R.R. Co., 39 Barb. 298; 5 Mass. 420; 13 Mass. 437; 22 Pick. 264; 2 Greenl. 179; 2 Met. 559; 7 Johns. 545; 25 Cow. 180; 3 Cush. 91.)

IV. The appeal took the whole case to the Circuit Court, beginning with the ordinance of the 7th of August, 1866. That was the only authority for the mayor to act. All action subsequent to said ordinance was under it; and to carry it into effect, and in order that the Circuit Court could understand the case, it was necessary that the whole record should be before it. It will hardly be contended that the appeal from the verdict of the second jury did not properly take up to the Circuit Court the ordinance of August, 1866. Now, if the appeal took to the Circuit Court the first proceeding on paper in the case, why did it not take all intermediate proceedings? (1 Mo. 539; Gen. Stat. 1865, p. 724, § 12; 10 Mo. 773.)

Vories & Vories, for respondent.

I. The District Court committed no error in reversing the judgment of the Circuit Court in this cause. That court had no jurisdiction over the verdict of the jury upon which it rendered judgment against the plaintiff for three thousand dollars. No appeal was taken from said verdict; the court was therefore not possessed of the same. Nothing was before the court but the verdict for fifteen hundred dollars, rendered on the 16th of October, and from which the appeal was taken by the defendants. If the first verdict had been appealed from, and had been properly before the court, no judgment could have been rendered thereon, nor could the court render a judgment in any such case even where the damages were more properly found. All that the court was authorized to do was to have the damages assessed by a jury. See City Charter, approved February 22, 1851, article VI; Book of Ordinances, 52-3; also ordinance of the city entitled “An ordinance regulating when property is taken for public use.” (Ord. p. 137.)

II. There is no mode provided by law for the collection of the amount of damages assessed in such case, except that it is provided that the property shall not be taken until the damages are paid; hence, the proceeding to ascertain the amount of damages is only had for the purpose of fixing the price for which the city can take the property. When this is done there is nothing in the law to bind the city to take the property or to pay the damages assessed. It is only provided that she shall not take the property until the money is paid. This is the security of the owner of the property. The right of action never arises in favor of the property-holder to recover the money assessed, until the property is actually taken; and by the law in this case the property cannot be taken until the money is paid. The judgment of the court was therefore erroneous, if the case was properly before it. It could only proceed to have the damages reassessed. (See charter above referred to; also North Missouri R.R. Co. v. Lackland, 25 Mo. 515, 530, 532; 10 How. 395; Cushman v. Smith, 34 Maine, 247, where the whole subject is investigated; Bloodgood v. M. & H. R.R. Co., 18 Wend. 26-32.) But it is not necessary to investigate these questions, as the court gave judgment on a case which had never been appealed from or otherwise brought before the court. If the case was before the Circuit Court, as is assumed by defendants, then it was plainly the duty of the court to proceed to have the damages reassessed, as the law directs. If the case had not been appealed, so that the damages should be reassessed, then the court had no jurisdiction of the case, and its action was erroneous. In either case the District Court properly reversed the judgment of the Circuit Court, and the judgment of the District Court should be by this court affirmed.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding commenced by and before the mayor of the city of St. Joseph, under the charter of said city, for the purpose of widening Fourth street, and to condemn a strip off from the east end of the lot of appellants. The proceedings were instituted under authority given by the charter, and in pursuance of ordinances passed by the city council. The second section of the sixth article of the charter provides that the mayor and councilmen shall have power to extend, open, or widen streets; and that, when private property is required or taken therefor, the mayor shall in all cases cause a jury to be summoned and sworn to assess the damages. The third section declares that when any assessment of damages shall have been made for opening, extending, or widening any street, either the city or any other person or persons feeling themselves aggrieved thereby may take an appeal from such assessment to the Circuit Court, in such manner and on such terms as appeals are granted from justices of the peace. By section 4 it is provided that when any such appeal shall be taken to the Circuit Court, the same shall be tried as other issues in said court; and in case damages be assessed to any person by a jury or court, the same shall be paid out of the city treasury before the property of such person shall be taken for public use. By an ordinance approved August 7, 1866, regulating proceedings when private property is taken for public use, the following clause is enacted: “On the day mentioned the jury shall be sworn, and, after examining the ground, shall make an award in writing, which, if an appeal be not taken therefrom in accordance with the third section of the sixth article of the city charter, shall be reported to the city council, and, if approved by them, shall be binding on the city and all others interested, and an appropriation shall be made of the sum awarded.”

On the 7th of August, 1866, the city council passed an ordinance requiring the street to be widened which passes appellants' lot, a portion of which was sought to be condemned. A jury was regularly impaneled on the 11th day of September, 1866. The parties appeared,...